IN THE SUPREME COURT OF FLORIDA

CASE NO. SC17-843 _________________________________________________________________

STATE OF FLORIDA,

Petitioner, v.

KENNETH PURDY,

Respondent. _________________________________________________________________

BRIEF OF THE FLORIDA JUVENILE RESENENTENCING AND REVIEW PROJECT AND THE FAIR PUNISHMENT PROJECT

AS AMICI CURIAE ON BEHALF OF THE RESPONDENT __________________________________________________________________

ON DISCRETIONARY REVIEW FROM THE FIFTH DISTRICT COURT OF APPEAL

__________________________________________________________________

ROSEANNE ECKERT Florida Juvenile Resentencing and Review Project FIU College of Law 11200 S.W. 8th St, RDB 1010 Miami, FL 33199

RONALD SULLIVAN AMY WEBER Fair Punishment Project Harvard Law School 1557 Mass. Ave Lewis Hall, 203 Cambridge, MA 02138

Filing # 59104938 E-Filed 07/17/2017 02:41:38 PM

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TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................ i

TABLE OF AUTHORITIES ................................................................................ iii

IDENTITY AND INTEREST OF AMICI ............................................................. 1

CONSENT OF THE PARTIES .............................................................................. 2

SUMMARY OF THE ARGUMENT ..................................................................... 2

ARGUMENT ............................................................................................................ 3

I. Florida’s chosen legislative response to the United States Supreme Court’s evolving juvenile jurisprudence demonstrates a concerted effort to guarantee constitutional sentences for all juveniles. ................... 3

II. This Court must interpret Section 921.1402 to permit courts conducting judicial sentence review to modify a child’s aggregate sentence. .......................................................................................................... 5

A. The Eighth Amendment requires that a legitimate penological justification supports the incarceration of children. ................................................................................................ 6

1. Retribution ....................................................................................... 7

2. Deterrence ........................................................................................ 9

3. Incapacitation ................................................................................10

4. Rehabilitation.................................................................................10

B. A child’s continued incarceration, after a reviewing court has found he is successfully rehabilitated under section 921.1402, serves no penological purpose and is unconstitutional. ................................................................................11

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C. Florida courts cannot ensure that juvenile sentences are proportionate and serve valid penological purposes unless all counts of the child’s aggregate sentence may be modified during sentence review. .....................................................................13

III. Conclusion .....................................................................................................16

CERTIFICATE OF COMPLIANCE .................................................................... 2

CERTIFICATE OF SERVICE .............................................................................. 2

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TABLE OF AUTHORITIES

Cases

Adams v. Alabama, 136 S. Ct. 1796 (2016) ............................................................... 8

Atkins v. Virginia, 536 U.S. 304 (2002) ..................................................................... 7

Barnes v. State, 175 So. 3d 380 (Fla. 5th DCA 2015) .............................................15

Coker v. Georgia, 433 U.S. 584 (1977) ..................................................................... 6

Cook v. State, 190 So. 3d 215 (Fla. 4th DCA 2016) ................................................15

Falcon v. State, 162 So. 3d 954 (Fla. 2015) .............................................................. 1

Graham v. Florida, 560 U.S. 48 (2010) .......................................................... passim

Gridine v. State, 175 So. 3d 672 (Fla. 2015) ...........................................................14

Henry v. State, 175 So. 3d 675 (Fla. 2015) ....................................................... 14, 15

Johnson v. Texas, 509 U.S. 350 (1993) ..................................................................... 9

Miller v. Alabama, 567 U.S. 460 (2012) ...................................................... 2, 4, 7, 8

Montgomery v. Louisiana, 136 S. Ct. 718 (2016) ........................................... passim

Perry v. State, 210 So. 3d 630 (Fla. 2016) ................................................................. 6

Purdy v. State, No. 5D16-370 (5th DCA Jan. 27, 2017) ........................................... 3

Roper v. Simmons, 543 U.S. 551 (2005) ................................................................4, 7

State v. Roby, No. 15-0175 (Iowa June 16, 2017) ..................................................... 5

Tison v. Arizona, 481 U.S. 137 (1987) ...................................................................... 7

Tyson v. State, 199 So. 3d 1087 (Fla. 5th DCA 2016) ............................................15

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Statutes

Fla. Stat. § 775.082 .................................................................................................... 4

Fla. Stat. § 921.1401 .................................................................................................. 4

Fla. Stat. § 921.1402 ......................................................................................... 3, 4, 5

Fla. Stat. § 921.1402(7) ............................................................................................13

Other Authorities

Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 AM. PSYCHOLOGIST 1009, 1014 (2003) .......................10

Steven N. Durlauf & Daniel S. Nagin, Imprisonment and crime: Can both be reduced?, 10 CRIMINOLOGY & PUBLIC POLICY 13, 14 (2011)(collecting studies at 27-31) ......................................................................................................... 9

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IDENTITY AND INTEREST OF AMICI

The Florida Juvenile Resentencing and Review Project (“Resentencing

Project”) at the Florida International University College of Law was founded in 2015

following the legislative enactment of Chapter 2014-220, Law of Florida, and the

release of this Court’s decision in Falcon v. State, 162 So. 3d 954 (Fla. 2015)

(holding that Miller v. Alabama, 567 U.S. 460 (2012), is retroactive). The

Resentencing Project was created with the goal of ensuring that each juvenile in the

State of Florida who is either serving or facing life in prison as well as those entitled

to judicial review receive a robust and comprehensive defense. The focus of the

Resentencing Project is to provide consultation and training for attorneys who are

representing juveniles in the adult system and make recommendations on policy and

legislative matters affecting juveniles who are subject to prosecution as adults.

The Fair Punishment Project (“FPP”) is a joint project of the Charles Hamilton

Houston Institute for Race and Justice and the Criminal Justice Institute, both at

Harvard Law School. The mission of the Fair Punishment Project is to address ways

in which our laws and criminal justice system contribute to the imposition of

excessive punishment. FPP believes that punishment can be carried out in a way

that holds offenders accountable and keeps communities safe, while still affirming

the inherent dignity that all people possess.

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CONSENT OF THE PARTIES

The Petitioner and Respondent do not object to this filing. Petitioner’s Initial

Brief on the Merits was filed on June 15, 2017. Respondent’s Answer Brief was

filed on July 5, 2017. Amici write in support of the Respondent, and are filing their

brief on Monday, July 17, 2017 as the tenth day after the filing of the Answer brief

falls on a Saturday. If this filing is considered untimely, Amici request “leave for

later service.” Fla. R. App. P. 9.370(c).

SUMMARY OF THE ARGUMENT

The issue of statutory interpretation currently before the Court is crucial to the

constitutional sentencing of juveniles throughout the State of Florida. It is only by

permitting reviewing courts to modify a juvenile’s aggregate sentence, and all the

individual sentences that compose it, that Florida’s statutory scheme can serve as an

effective remedy for violations of Graham v. Florida, 560 U.S. 48 (2010) and Miller

v. Alabama, 567 U.S. 460 (2012).

“Protection against disproportionate punishment is the central substantive

guarantee of the Eighth Amendment,” Montgomery v. Louisiana, 136 S. Ct. 718,

732 (2016). “A sentence lacking any legitimate penological justification is by its

nature disproportionate to the offense.” Graham, 560 U.S. at 71. Once a trial court

has determined a child has been rehabilitated and is fit to reenter society, his

continued confinement serves no such purpose. For a trial court to ensure such

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unconstitutional punishment is not inflicted upon Florida’s children, it must have the

authority to modify a juvenile’s entire sentence during judicial review, not just the

sentence on one count of the information or indictment.

ARGUMENT

The narrow statutory issue before this Court is whether, when conducting

judicial review pursuant to Florida Statute section 921.1402, the trial court may

modify a juvenile’s aggregate sentence on all counts of conviction if it finds the child

has demonstrated maturity and rehabilitation and is fit to reenter society. Purdy v.

State, No. 5D16-370, at *5 (5th DCA Jan. 27, 2017). The broader constitutional

question presented by Mr. Purdy’s case, however, is whether the United States

Constitution permits the State to condemn a juvenile, who has been rehabilitated and

found fit to reenter society, to serve nearly another decade in prison for conduct that

arose out of the same offense. Amici submits, for the reasons that follow, that it does

not.

I. Florida’s chosen legislative response to the United States Supreme Court’s evolving juvenile jurisprudence demonstrates a concerted effort to guarantee constitutional sentences for all juveniles.

Over the past twelve years, the United States Supreme Court has

revolutionized the manner in which juveniles may be sentenced. The Court has

repeatedly recognized that children have a “‘lack of maturity and an underdeveloped

sense of responsibility,’ … ‘are more vulnerable or susceptible to negative

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influences and outside pressures, including peer pressure,’” and are “more capable

of change” than adult offenders. Graham, 560 U.S. at 68, quoting Roper v. Simmons,

543 U.S. 551, 569-70 (2005). The Court has held that “children are constitutionally

different from adults for purposes of sentencing,” Miller v. Alabama, 567 U.S. at

471, and therefore, “a sentencing rule permissible for adults may not be so for

children.” Id. at 481. The Court has categorically prohibited sentencing juveniles to

death, Roper, 543 U.S. at 568, to life-without parole for a non-homicide offense,

Graham, 560 U.S. at 74, or to life-without-parole for a homicide offense unless the

child is one of the “rare” individuals who shows “irretrievable depravity” and for

whom “rehabilitation is impossible,” Montgomery,136 S. Ct. at 733.

Once Miller held that children could not be sentenced to a mandatory life

sentence without parole, the Florida Legislature responded by passing a new juvenile

sentencing scheme, Chapter 2014-220, Laws of Florida, which sought to implement

Graham and Miller. The statute requires individualized sentencing hearings for

juveniles convicted of serious felonies in adult court and grants trial judges greater

discretion to impose proportionate penalties on juvenile offenders. §§ 775.082,

921.1401, Fla. Stat.

In addition to permitting lesser penalties at the time of initial sentencing, the

statutory scheme also provides for judicial review and modification of a juvenile’s

sentence years later. § 921.1402, Fla. Stat. Perhaps recognizing a court’s superior

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ability to ensure children are not subject to unconstitutional incarceration, the

legislature opted not to reinstate the parole system for juvenile offenders but rather

assigned the determination about a juvenile’s fitness to rejoin society to the trial

judge. Id. Once a juvenile has served a threshold term of years, the length of which

is determined by the nature of the crime committed and the initial sentence imposed,

the trial court must modify the sentence and impose a probationary term if it finds

that the juvenile “has been rehabilitated and is reasonably believed to be fit to reenter

society.” Id. The statute specifically applies to children convicted of felonies that,

standing alone, may carry a life sentence: capital felonies, life felonies, and first-

degree felonies punishable by life in prison. Id. The proper interpretation of this

statutory scheme is at issue in this case.

II. This Court must interpret section 921.1402 to permit courts conducting judicial sentence review to modify a child’s aggregate sentence.

The parties have advocated for alternative interpretations section 921.1402,

each asserting its favored reading is supported by the statute’s text and legislative

history. Only Mr. Purdy’s approach, however, would produce constitutional

sentencing outcomes for Florida’s juveniles. Continued incarceration “[a]fter the

juvenile’s transient impetuosity ebbs and the juvenile matures and reforms ...

becomes ‘nothing more than the purposeless and needless imposition of pain and

suffering,’” State v. Roby, No. 15-0175, at *9 (Iowa June 16, 2017), quoting Coker

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v. Georgia, 433 U.S. 584, 592 (1977). Therefore, limiting the scope of judicial

review to a single count of conviction, as the State has advocated, would necessarily

lead to incarceration unsupported by any penological purpose, as it has in Mr.

Purdy’s case. Because “[t]his Court has an obligation to construe a statute in a way

that preserves its constitutionality,” Perry v. State, 210 So. 3d 630, 638–39 (Fla.

2016), it must instead read the statute to allow courts to review and modify a

juvenile’s aggregate sentence, not just the sentence imposed on one count.

A. The Eighth Amendment requires that a legitimate penological justification supports the incarceration of children.

“Protection against disproportionate punishment is the central substantive

guarantee of the Eighth Amendment,” Montgomery, 136 S. Ct. at 732. Because “[a]

sentence lacking any legitimate penological justification is by its nature

disproportionate to the offense,” Graham, 560 U.S. at 71, this Court must consider

the penological goals purportedly served by prison sentences imposed upon children.

When continued incarceration advances no penological purpose, it constitutes cruel

and unusual punishment. See id. Furthermore, “[e]ven if the punishment has some

connection to a valid penological goal, it must [also] be shown that the punishment

is not grossly disproportionate in light of the justification offered.” Id. at 72.

The U.S. Supreme Court has recognized four legitimate goals of penal

sanctions: “retribution, deterrence, incapacitation, and rehabilitation.” Graham, 560

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U.S. at 71. However, the “distinctive attributes of youth,” including immaturity and

impetuosity, vulnerability to “negative influences and outside pressures,” and a

greater capacity for change and rehabilitation, Roper, 543 U.S. at 569-570, weaken

each of the penological objectives severe penalties purportedly serve. See Miller,

567 U.S. at 473-74. A juvenile’s uniquely reduced culpability and ability to change

require that a child’s punishment must be targeted towards a rehabilitative goal. See

Graham, 560 U.S. at 68-74. Where, as here, a juvenile has already served over two

decades in prison—longer than the period of time mandated by statute before he was

entitled to judicial review—and a court has determined he is rehabilitated and fit to

rejoin society, any penological purpose of additional punishment disappears.

1. Retribution

While “[s]ociety is entitled to impose severe sanctions on a juvenile . . .

offender to express its condemnation of the crime and to seek restoration of the moral

imbalance caused by the offense[,] . . . ‘[t]he heart of the retribution rationale is that

a criminal sentence must be directly related to the personal culpability of the criminal

offender.’” Graham, 560 U.S. at 71, quoting Tison v. Arizona, 481 U.S. 137, 149

(1987). An offender’s culpability is not exclusively determined by the facts of his

offense, but rather is a function of both his “crimes and characteristics.” Id. at 67;

see also Roper, 543 U.S. at 568, quoting Atkins v. Virginia, 536 U.S. 304, 319

(2002)(“Capital punishment must be limited to those offenders who commit a

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‘narrow category of the most serious crimes’ and whose extreme culpability makes

them ‘the most deserving of execution.’”). Because juvenile offenders are

biologically predisposed to immature and irresponsible behavior, are more easily

influenced by their peers, and lack the ability to control their own environments,

their criminal offenses, even when shocking or heinous, are generally less morally

reprehensible than those committed by their adult counterparts. See Roper, 543 U.S.

at 571; Adams v. Alabama, 136 S. Ct. 1796, 1800 (2016) (Sotomayor, J., concurring)

(“[T]he gruesomeness of a crime is not sufficient to demonstrate that a juvenile

offender is beyond redemption: ‘The reality that juveniles still struggle to define

their identity means it is less supportable to conclude that even a heinous crime

committed by a juvenile is evidence of irretrievably depraved character.’”).

Because a juvenile’s offense does not necessarily reflect his true and

permanent character, the United States Supreme Court has repeatedly stressed that

respect for his potential to reform is the touchstone of a proportionate and

constitutional juvenile sentence. See Montgomery, 136 S. Ct. at 726 (“a lifetime in

prison is a disproportionate sentence for all but the rarest of children, those whose

crimes reflect irreparable corruption”). The goal of retribution is only served if the

punishment imposed is warranted by the offender’s true level of depravity. See

Miller, 567 U.S. at 472.

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2. Deterrence

Because juveniles’ “‘lack of maturity and underdeveloped sense of

responsibility . . . often result in impetuous and ill-considered actions and

decisions,’” they are less likely to fully appreciate and respond to risks when making

decisions. Graham, 560 U.S. at 72, quoting Johnson v. Texas, 509 U.S. 350, 367

(1993). As a result, the deterrent effect of severe punishments upon juveniles is

reduced. Id. This effect is directly related to the immature brain of a teenager—his

diminished capacity for risk assessment, impulse control, and emotional regulation

necessarily render him less responsive to long term incentives that may successfully

deter an adult. Id.

In addition, even with adult offenders, the deterrent effect of continued

incarceration dramatically decreases with sentence length. Numerous studies have

found that “the marginal deterrent effect of increasing already lengthy prison

sentences is modest at best.” Steven N. Durlauf & Daniel S. Nagin, Imprisonment

and crime: Can both be reduced?, 10 CRIMINOLOGY & PUBLIC POLICY 13, 14

(2011)(collecting studies at 27-31). Studies specifically examining the impact of

increased sentence length on juveniles demonstrate that it is virtually nonexistent.

Id. at 30. Therefore, once a juvenile is required to serve fifteen, twenty or twenty-

five years in prison, any additional punishment he faces is unlikely to impact his

choices or conduct. See id.

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3. Incapacitation

Although “[r]ecidivism is a serious risk to public safety,” recidivism

prevention only justifies continued incarceration for as long as an inmate poses a

substantial risk to reoffend. See Graham, 560 U.S. at 72-73. “[O]rdinary adolescent

development diminishes the likelihood that a juvenile offender forever will be a

danger to society.” Montgomery, 136 S. Ct. at 733 (internal quotation marks and

citation omitted) . The vast majority of teenagers cease engaging in risky and illegal

behavior as they mature. Roper, 543 U.S. at 570, citing Laurence Steinberg &

Elizabeth S. Scott, Less Guilty by Reason of Adolescence: Developmental

Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 AM.

PSYCHOLOGIST 1009, 1014 (2003). Where a trial court has found a juvenile offender

is fit to reenter society, incapacitation cannot justify his continued incarceration. See

Graham, 560 U.S. at 73.

4. Rehabilitation

Finally, to promote the rehabilitative ideal, a sentence must offer a juvenile

offender a “meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.” Graham, 560 U.S. at 75. Rehabilitation is critically

important to constitutional juvenile sentencing. The Court has stressed, a “juvenile

should not be deprived of the opportunity to achieve maturity of judgment and self-

recognition of human worth and potential.” Id. at 79. However, rehabilitation, as a

11

penological justification, is meaningless unless it is directly linked to a child’s right

to reenter his community. See id. at 74 (life-without-parole “forswears altogether the

rehabilitative ideal”). When a child has been rehabilitated and is deemed fit to rejoin

society, there is no legitimate interest in his continued imprisonment. See id. at 73.

In summary, each of these four penological justifications hinges on the nature

of a child’s true character and whether or not his offense reflected an immutable

deficiency of values and morals. Because an accurate assessment of a child’s

culpability, potential threat to public safety, and ability to rehabilitate all turn on

whether or not a juvenile offender is redeemable, the answer to that question dictates

whether any penological purpose is served by the child’s continued incarceration. It

is for this reason that the Supreme Court has held that a lifetime of incarceration is

only constitutionally permissible for a child who is “irreparably corrupt.”

Montgomery, 136 S. Ct. at 734. As the recent juvenile jurisprudence has clarified,

therefore, under the Eighth Amendment, any child who is sentenced to a lengthy

term of incarceration must be given the opportunity to demonstrate rehabilitation,

and, once successful, released from custody. Graham, 560 U.S. at 75.

B. A child’s continued incarceration, after a reviewing court has found he is successfully rehabilitated under section 921.1402, serves no penological purpose and is unconstitutional.

The principles set forth in the Supreme Court’s Eighth Amendment

jurisprudence make clear that, once a court has determined a juvenile has been

12

successfully rehabilitated and is unlikely to be a danger to society, any continued

incarceration lacks penological purpose and is unconstitutional.

Retribution is not advanced by this detention, because society has been made

whole and the child has demonstrated his character has been reformed. Therefore,

neither the “crimes [or] characteristics,” Graham, 560 U.S. at 67, of the juvenile

support his continued incarceration.

The juvenile sentencing review statute, section 921.1402, only permits

modification of a child’s sentence after he or she has served a set, lengthy term of

incarceration. These mandatory terms, which vary in length depending on the

specific crime committed, reflect the legislature’s assessment of the sentence

necessary to “express [society’s] condemnation of the crime and to seek restoration

of the moral imbalance caused by the offense.” Graham, 560 U.S. at 71. Once a

judicial review hearing occurs, these purposes have been satisfied.

As for the culpability of the offender, the other facet of the retribution

rationale, the court makes a definitive determination of the continued viability of this

penological justification during the review hearing. Once the court has found a child

successfully rehabilitated, it is apparent that his offense does not reflect permanent

moral failings such that continued incarceration is proportionate.

Neither does continued incarceration advance either the deterrence or

incapacitation rationales. As discussed earlier, the deterrence effect of additional

13

incarceration, on top of substantially lengthy sentences, is negligible in general and

likely non-existent where a juvenile offender is involved. See infra at 9-10.

Similarly, the need to incapacitate the offender cannot justify continued

incarceration once court has found he is fit to reenter society because, by that finding,

the court has determined that he is unlikely to be a continued danger.

The last penological justification, rehabilitation, fails as well. Once the court

has determined that the offender “has been rehabilitated,” Florida Statute section

921.1402(7), there is no justification for continued imprisonment for the sake of

reform. Rehabilitation, which the constitution requires to serve as the primary basis

for the child’s sentence in the first instance, has already occurred. The Eighth

Amendment mandates that, after a child has spent decades in prison and been

successfully reformed, he must be released.

C. Florida courts cannot ensure that juvenile sentences are proportionate and serve valid penological purposes unless all counts of the child’s aggregate sentence may be modified during sentence review.

Because the constitution requires that a child who has been successfully

rehabilitated must be released, courts reviewing sentences under section 921.1402

must have the authority to modify the aggregate sentence a juvenile is serving, not

just the sentence for one specific count of conviction. This Court can interpret

section 921.1402 in a constitutional manner by holding that the permitted review of

the offender’s “sentence” under subsection (2) encompasses his entire sentence, not

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just the sentence for a particular count. To hold otherwise would impair the ability

of trial courts to fashion constitutional sentences for children and would necessarily

lead to continued, unconstitutional, incarceration well after a juvenile has been

successfully reformed.

This interpretation of the statute is also consistent with this Court’s prior

juvenile sentencing jurisprudence. In Henry v. State, 175 So. 3d 675 (Fla. 2015),

this Court held that Graham applies with equal force to aggregate sentences that do

“not afford any ‘meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.’” Id. at 679, quoting Graham, 560 U.S. at 75. Graham,

which was predicated on the unique characteristics and reduced culpability of

children, required that all juvenile non-homicide offenders have such an opportunity.

Id. at 679. Therefore, Henry’s 90-year aggregate sentence, resulting from

consecutive sentences imposed on eight separate felony offenses, violated the Eighth

Amendment. Id. at 676, 679; see also Gridine v. State, 175 So. 3d 672, 674 (Fla.

2015)(70-year aggregate sentence for non-homicide offenses violated Graham).

This Court’s remedy for Henry’s unconstitutional sentence was to remand the

case for resentencing under chapter 2014–220, Laws of Florida. Id. at 680. Henry’s

offenses, however, were not all capital, life, or first-degree felonies punishable by

life. Id. at 676. In fact, many were second-degree felonies, which are not technically

included in the explicit terms of section 921.1402. See id. Nevertheless, this Court

15

did not distinguish how the statute should apply to different counts of conviction or

limit its holding in Henry to isolated offenses, and it would have been illogical to do

so. Henry’s consecutive sentences for multiple offenses were unconstitutional

because the aggregate term failed to link a meaningful opportunity for release to

demonstrated maturity and rehabilitation. Id. at 679. The Court’s remedy would be

meaningless if it did not apply to each link in the chain creating that constitutional

infirmity.

Florida’s District Court of Appeals have interpreted Henry accordingly,

finding lengthy aggregate sentences violate the Eighth Amendment and ordering

resentencing under chapter 2014–220, Laws of Florida, even where the juvenile

offender did not commit a single capital felony, life felony, or first-degree felony

punishable by life. See, e.g., Tyson v. State, 199 So. 3d 1087 (Fla. 5th DCA

2016)(consecutive sentences for robbery with a weapon, conspiracy and evidence

tampering); Cook v. State, 190 So. 3d 215 (Fla. 4th DCA 2016)(aggregate sentence

for four counts of attempted second-degree murder, one count of aggravated assault,

one count of shooting a deadly missile, and one count of possession of a firearm by

a minor); Barnes v. State, 175 So. 3d 380, 381 (Fla. 5th DCA 2015)(aggregate

sentence for aggravated battery with a firearm, aggravated assault with a firearm,

carrying a concealed firearm, and resisting an officer without violence). These

results are clearly mandated by Henry. Were this Court to adopt the State’s proposed

16

interpretation of the statute, trial and appellate courts would be unable to ensure the

constitutional viability of these and other juvenile sentences.

III. Conclusion

For all of the reasons set forth above, Amici urge this Court to find that, under

section 921.1402, a reviewing court is permitted to modify a juvenile’s aggregate

sentence, once the court concludes a juvenile offender has been rehabilitated and is

fit to reenter society.

Respectfully Submitted,

/s/ Amy Weber AMY WEBER Fla. Bar No. 662151 Fair Punishment Project P.O. Box 17265 Chapel Hill, NC 27516 Telephone: 305.793.7321 amy.weber@fairpunishment.org

/s/ Roseanne Eckert ROSEANNE ECKERT Fla. Bar No. 082491 Florida Juvenile Resentencing and Review Project FIU College of Law 11200 S.W. 8th St., RDB 1010 Miami, FL 33199 Telephone: 305.348.2669 reckert@fiu.edu

Amici Counsel in support of Respondent

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CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this brief complies with the font requirement of

rule 9.210(a)(2) of the Florida Rules of Appellate Procedure.

/s/ Roseanne Eckert Roseanne Eckert Amici Counsel

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing

motion was served to Matthew R. McLain, Esquire, 1057 Maitland Center Commons

Blvd., Suite 204, Maitland, Florida, 32751, at Matthew@Mclainlaw.com and

Wesley Heidt, Daytona Beach Bureau Chief, and Pamela J. Koller, Assistant

Attorney General, Office of the Attorney General, 444 Seabreeze Boulevard, Suite

500, Daytona Beach, Florida, 32118, by email at crimappdab@myfloridalegal.com

on this 17th day of July, 2017.

/s/ Roseanne Eckert Roseanne Eckert Amici Counsel